Consumer Federation of California

Should the police be allowed to affix an electronic tracking device to a suspect’s car without a warrant and follow his every movement for a month? That was the question at an oral argument at the Supreme Court on Tuesday. The justices expressed unease with such pervasive surveillance, with one comparing it to George Orwell’s "1984."

Their misgivings reflect a sense on the part of many Americans, including this editorial board, that there’s something creepy about round-the-clock electronic surveillance. But when they decide the case of Antoine Jones, a suspected drug dealer who was arrested after being monitored by a global positioning system, they will have to base any decision in Jones’ favor not on creepiness but on the Constitution. Fortunately, that document, interpreted in light of technological advances, supports a ruling that GPS surveillance without a warrant violates the 4th Amendment.

In his argument, Deputy Solicitor Gen. Michael Dreeben asked the court to treat GPS tracking the same way it treats visual observation of a suspect on a public street. "What a person seeks to preserve as private in the enclave of his own home or in a private letter or inside of his vehicle when he is traveling is a subject of 4th Amendment protection," Dreeben said. "But what he reveals to the world, such as his movements in a car on a public roadway, is not."

That accurately summarizes current law, but it doesn’t take into account the dramatic technological advances of the last few years. GPS tracking, which allows police to follow as many people as they want for as long as they want without expending many resources, takes invasion of privacy to a new level. As Judge Douglas Ginsburg wrote in an appeals court decision in Jones’ favor, prolonged GPS surveillance "reveals an intimate picture of the subject’s life that he expects no one to have ‘ short perhaps of his spouse."

It’s true that under existing law, a police officer in a squad car could follow a suspect day and night for an indefinite period of time without a warrant. But Justice Stephen G. Breyer pointed out that, in reality, "no one, at least very rarely, sends human beings to follow people 24 hours a day." In interpreting the 4th Amendment’s ban on illegal searches and seizures, the court must consider how the real world works. In that world, GPS tracking allows police a picture of a suspect’s life that never would be generated by ordinary police methods. As Chief Justice John G. Roberts Jr. put it on Tuesday: "’ you’re talking about the difference between seeing the little tile and seeing a mosaic."

A ruling for Jones wouldn’t require an end to GPS tracking. All it would mean is that police would have to obtain a warrant before making use of a device that the framers of the 4th Amendment never could have conceived of.